April 12, 2011

Single Judge Application, Mayhue v. Shinseki, CFR 3.156(c)(2)

Excerpt from decision below:
“On remand, the Board should also consider, in the first instance, the
applicability of Mayhue.
In Mayhue, __ Vet.App. at __, slip op. at 7-9, the Court recognized that §
3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. The Court observed that it was VA’s failure to use the information that it always
had available, rather than any inaction on the part of the claimant, that prevented the Agency from corroborating the purported stressor at an earlier date. Id.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2221
FRANK R. WEIGEL, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Frank R. Weigel, Jr., through counsel,
appeals a
February25, 2009,BoardofVeterans’Appeals (Board)decision in which the
Board denied his claim
for an effective date earlier than August 19, 2003, for the grant of
service connection for post-
traumatic stress disorder (PTSD). Record of Proceedings (R.) at 12. This
appeal is timely, and the
Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Both parties filed briefs, and the appellant filed a reply brief. Moreover,
both parties filed
supplemental briefs in response to a Court order asking the parties to
address the impact of the
Court’s recent decision in MayhueNext Hit v. Shinseki, __ Vet.App. __, No. 09-0014 (
Jan. 18, 2011).
Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For
the following reasons, the Court will reverse a factual finding made by
the Board and remand the
matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from July 1965 to
June 1969. R. at
1663. AmilitaryextractdatedNovember1968 shows that the appellant was
assigned to 330th Radio

Research Company (RRC). R. at 1154. In the decision on appeal, the Board
noted that medical
records from June 1993 to July 1997 did not show a diagnosis of PTSD. R.
at 7.
In August 1997, the appellant filed a claim for entitlement to service
connection for PTSD
and for a personal assault. R. at 1659. On the application, he appears to
relate a head injury to the
personal assault. R. at 1660. In November 1997, the regional office (RO)
mailed the appellant a
letter stating that it was reviewing his “claim for [PTSD] secondary to a
personal assault that [he]
experienced while on active duty.” R. at 1654. The appellant was
instructed to complete a PTSD
questionnaireentitled”INFORMATIONINSUPPORTOFCLAIMFORSERVICECONNECTION
FOR [PTSD] SECONDARY TO PERSONALASSAULT.” R. at 1655. The questionnaire
directed
the appellant to answer the following questions:
2. Describe the in-service incident(s) that you feel contributed to your
current
condition. For each incident, please tell us where the incident(s) took
place such as
city, town, country, or militaryinstallation and furnish the date(s) or
the approximate
time period if you do not remember the date. Please be as specific as
possible since
that will help us in deciding your claim . . . .
3. Please indicate the unit(s) you were in at the time of the incident and
the dates of
assignment to each unit. Provide the information for each incident . . . .
R. at 1655.
In a February 1998 rating decision, the RO denied the appellant’s claim
for entitlement to
service connection for PTSD because the evidence did not show either a
confirmed PTSD diagnosis
or that a stressful event occurred. R. at 1053. The RO noted that the
appellant had been asked to
provide information on his claimed stressors but “no reply to this request
for evidence has been
received by our office.” Id. The RO listed “[e]xtracts, [o]fficial [m]
ilitary personnel records” as
evidence it considered in reaching its decision. R. at 1052. In March 1998,
the RO again asked the
appellant to complete a questionnaire related to PTSD based on a personal
assault (R. at 1046), but
he again provided no response (R. at 1043).
The Board in its decision here on appeal noted that “VA records starting
in February 2001
document a diagnosis of PTSD.” R. at 7. In August 2003, the appellant
filed a claim to reopen his
claim for entitlement to service connection for that condition. R. at 1038.
In a September 2003
letter, the RO informed the appellant that he needed to submit “specific
details of the stressful
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incident(s) in service that resulted in [PTSD].” R. at 947. In February
2004, the RO denied the
appellant’s claimto reopenbecausetheappellanthadnot submitted”
evidenceofaconfirmedstressor
related to military service.” R. at 943. The RO noted that the appellant
had failed to respond to the
request for information. Id.
In September 2004, the appellant submitted lay evidence of in-service
stressors and he
asserted that he had been diagnosed with PTSD in 1999. R. at 596-98. In
that letter, he stated that
he was assigned to 330th RRC on Engineer Hill outside of Pleiku and, while
he was watching a
movie with members of his company, “[a] mortar round came through the
screen and landed in front
of [everyone].” R. at 597. In January 2005, the RO reopened the
appellant’s PTSD claim but denied
the claim on its merits, finding that the evidence “does not corroborate
that a stressful experience
occurred in service.” R. at 509. In an August 2005 Statement of the Case,
the RO observed that
treatment records from February 2005 to April 2005 “include history of
military service and history
of [PTSD] since 1998.” R. at 346.
In October 2005, the appellant’s representative wrote to the RO, providing
information
pertaining to rocket attacks that occurred during the appellant’s tour in
Vietnam. R. at 314-15. In
a March 2006 letter, the appellant’s representative noted that the RO had
furnished him with copies
of militaryrecords, including dutyassignments,
historicalsummariesforthe330thRRC, and reports
of attacks on bases in Vietnam. R. at 256. The representative asserted
that the record showed that
the appellant served with the 330th RRC in Pleiku and that there were
numerous attacks while he
was there. R. at 256.
In October 2006, the RO granted the appellant’s claim for entitlement to
service connection
for PTSD. R. at 124. The RO noted that the appellant’s representative had ”
furnished additional
detail” and had “requested that [he] attempt to confirm rocket/mortar
attacks for the period [of]
July 17, 1968[,] through June 5, 1969.” R. at 125. The RO stated that “[a]
dditional research shows
[that the appellant] was assigned to the 330th RRC which was located near
Pleiku in 1968. We were
able to confirm one ‘standoff’ attack on Pleiku on August 23, 1968.” Id.
The RO noted that a VA
medical examination confirmed a PTSD diagnosis related to exposure to
rockets and mortars. Id.
In January 2007, the appellant was awarded a 100% disability rating for
PTSD effective
August 2003. R. at 81.
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In its February 2009 decision, the Board declined to award the appellant
an effective date
earlier than August 2003 for a grant of service connection for PTSD. R. at
12. The Board
recognized the appellant’s assertion that he was entitled to an earlier
effective date under the
provisions of 38 C.F.R. § 3.156(c) (2006) based on the acquisition of
service records, but it
determined that the appellant was not entitled to the benefit of this
provision because he “never
provided sufficient information regarding his in[-]service stressors until
after he filed his renewed
claim with the September 2004 letter.” R. at 10 (citing 38 C.F.R. § 3.156(
c)(2)).

II. ANALYSIS
The appellant raises one argument on appeal, asserting that the Board
impermissibly applied § 3.156(c)(2), an exception to the general rule enunciated in the § 3.156(c). Appellant’s Brief (Br.) at 4-10. The Secretary contends that the Board’s application of that provision was not improper and asks that the decision be affirmed. Secretary’s Br. at 24.
The determination of the effective date of an award is generally governed
by 38 U.S.C. § 5110(a), which states that, “[u]nless specifically provided otherwise
. . . , the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application
therefor.” 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (2010).
Under 38 C.F.R. § 3.156(c)(1) (2010), “if VA receives or associates with
the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.”
However, this section does not apply “to records that VA could not have obtained when it decided the claim . . . because the claimant failed to provide sufficient information for VA to identify and obtain the records.”
38 C.F.R. § 3.156(c)(2). “An award made based all or in part on the
records identified by paragraph (c)(1) . . . is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156(c)(3).
This Court reviews the Board’s factual findings under the “clearly
erroneous” standard of review. 38 U.S.C. § 7261(a)(4). “A factual finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
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conviction that a mistake has been committed.'” Hersey v. Derwinski, 2
Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
In its decision, the Board stated that “the RO requested the [appellant]
identify the stressors
that led to his PTSD and provide details so the RO could obtain further
records to confirm the
stressor” but that the appellant “never provided sufficient information
regarding his in[-]service stressors until after he filed his renewed claim with the September 2004 letter.” R. at 10. Because of this, the Board concluded that § 3.156(c)(2) precluded the appellant from receiving an earlier effective date. Id. However, 1997 and 1998 correspondence from VA only concerned a claim for
entitlement to service connection for PTSD secondary to an in-service personal assault. This correspondence did not ask the appellant to submit information related to stressors from any sources other than an in-service personal assault, and the Board’s finding to the contrary was clearly erroneous. See 38 U.S.C. § 7261(a)(4); Hersey, supra.
It is not clear from the limited record before the Court whether VA ever
requested that the appellant submit information pertaining to other PTSD stressors. The Court will remand this matter to the Board with instructions to determine whether such information was requested, and to reconsider the applicability of § 3.156(c)(2). See Tucker v. West, 11 Vet. App. 369, 374 (1998)(finding that a remand is the appropriate remedy “where the Board has incorrectly applied the law,
failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”). On remand, the Board should also consider, in the first instance, the applicability of Mayhue.
In Mayhue, __ Vet.App. at __, slip op. at 7-9, the Court recognized that §
3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the PTSD claim was previously denied. The Court observed that it was VA’s failure to use the information that it always had available, rather than any inaction on the part of the claimant, that prevented the Agency from corroborating the purported stressor at an earlier date. Id.
The Court is cognizant that a diagnosis of PTSD is a prerequisite for
entitlement to service connection for the condition. Cohen v. Brown, 10 Vet.App. 128, 138 (1997). The Court is also aware that an earlier effective date based on newly acquired service records is effective on either the
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date entitlement arose or the date VA received the previously denied
claim, whichever is later. 38 C.F.R. § 3.156(c)(3). The February 1998 RO specifically determined that the appellant did not have a PTSD diagnosis. R. at 1053. However, in the decision on appeal, the Board found that the
appellant had a diagnosis of PTSD by February 2001 (R. at 7), and some
evidence suggests that the appellant received a diagnosis even earlier than that (see R. at 598 (appellant’s lay statement that he was diagnosed with PTSD in December 1999 by Dr. Lambert)). Thus, if on remand it is determined that Mayhue is applicable to this case and that the evidence available to the Agency in February 1998 was sufficient to verify the appellant’s claimed stressors, VA should determine the date of the appellant’s PTSD diagnosis, and should make any other findings necessary towards a determination of the date the appellant’s entitlement to service connection for PTSD arose. See 38 C.F.R. § 3.156(c)(3). His effective date should then be amended accordingly.

III. CONCLUSION
After consideration of the Board’s February 25, 2009, decision, the Court
REVERSES the Board’s finding that VA requested information pertaining to in-service
PTSD stressors by letters referring to an in-service personal assault. The matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: March 31, 2011
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
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